Known in some states as DUI, or driving under the influence, North Carolina revamped their drunk driving laws in 1983, editing out all of their various drug- and alcohol-related violations in favor of one offense: driving while impaired, or DWI. A driver convicted of violating this law, found in North Carolina General Statutes Section 20-138.1, faces serious consequences such as jail time, fines and loss of license, among other sanctions. Anyone driving in this state should get a clear understanding of what behavior is prohibited, aggravating factors and the penalties for impaired driving offenses.
Driving While Impaired
North Carolina's offense for driving while drinking or taking drugs is called DWI, short for driving while impaired. The DWI law makes it illegal to drive or attempt to drive in these three circumstances:
- While the driver is under the influence of an impairing substance.
- While the driver has a blood alcohol concentration (BAC) of 0.08 percent.
- While the driver has any amount of a Schedule I controlled substance, such as opioids or heroin, in their system.
Note that under North Carolina law, there are several exceptions to the 0.08 percent BAC limit for alcohol. First, drivers under the age of 21 are not legally permitted to drink alcohol in the state, so they violate the DWI law if chemical testing shows any amount of alcohol at all in their system.
Also, a different BAC legal limit applies to those holding commercial driver's licenses. The law provides that it is a DWI for a commercial driver to operate a vehicle with a BAC of 0.04 percent or above. The 0.04 percent BAC standard also applies to commercial vehicle drivers with a prior DWI. That means that, anyone who has a DWI on their record must not drive with a BAC of 0.04 percent or higher.
"Per Se" DWIs
Under North Carolina statutes, a driver can get a DWI conviction based on substances found to be in their system, termed "per se" DWIs. In fact, two of the three statutory grounds for DWIs in North Carolina are based on chemical testing: the BAC legal limits for alcohol and the prohibition against driving while using any amount of a controlled substance. These grounds result in what is known as a "per se" DWI. Per se means that no further evidence of being under the influence or of impairment is required to convict the person of DWI.
Note that the fact that a person is legally authorized to use a controlled substance is not a defense to a per se drug DWI charge. For example, opioids are frequently prescribed by doctors and dentists to their patients who are experiencing pain. This gives the person the right to take the drug, but not the right to drive with the drug in their system. Driving with prescription opioids in one's system is just as much a DWI in North Carolina as driving while using heroin or cocaine.
The amount of alcohol in a person's system is usually determined in North Carolina by use of a breathalyzer test, the test where the driver is asked to blow into a machine that determines their BAC level. On the other hand, the type and level of drugs in a person's system is determined by blood or urine testing.
Impairment DWI in North Carolina
The third type of DWI defined in the state statutes is based on the driver's actual impairment. While driving with a BAC that is over the legal limit is a per se DWI and sufficient to convict the individual, this is not a two-way street. That is, if chemical testing reveals that a driver's BAC is under 0.08 percent, they can still be found guilty of a DWI in North Carolina if there is evidence that they were impaired.
Likewise, even if the driver refuses to take a chemical test, a prosecutor can convict them of a DWI. To do this, the state would have to offer evidence that proves beyond a reasonable doubt that the driver was under the influence and impaired by alcohol or drugs. This evidence could be testimony by the arresting police officer of the person's erratic driving or impaired behavior when they exited from the vehicle. If the driver has problems completing the roadside sobriety testing, this can also be included in the evidence of impairment.
It is easy to see that impairment is more difficult to establish than exceeding the BAC legal limit as measured by chemical testing. While prosecutors do convict some drivers by showing actual impairment, most DWIs in North Carolina are per se DWIs.
Implied Consent in North Carolina
North Carolina, like many states, relies on chemical testing to prove per se DWIs. A driver who has been imbibing or using drugs has every reason to refuse to participate in chemical testing, since it is harder to show impairment. That is why North Carolina enacted implied consent laws. These laws provide that a North Carolina driver is deemed to have consented to chemical testing for DWI purposes.
A refusal to participate in chemical testing when stopped for a DWI is itself a separate violation that incurs immediate administrative penalties. A driver also incurs administrative penalties if they undergo testing and fail the test by exceeding the BAC legal limit.
Penalties for Chemical or Breath Test Refusal
Administrative penalties for test refusal or test failure are initially civil sanctions. The driver is subject to having their license revoked, and this occurs immediately after the refusal or the failed testing. The initial revocation period is 30 days to give the driver an opportunity to demand a hearing at the Division of Motor Vehicles.
If a person does not timely request a hearing, the period of revocation is extended. It is also extended if the person does demand an administrative hearing but loses. The duration of the revocation depends on the offense and the driver's prior record. Anyone refusing to take a test will be subject to a one-year revocation. Those failing a chemical test are subject to these license revocation periods:
- First DWI offense: one-year revocation.
- Second DWI offense: four-year revocation.
- Third DWI offense: permanent revocation.
DWI Penalties for Drivers Under 21
As described above, drivers who are too young to purchase alcohol in North Carolina are deemed impaired if they are found to have any alcohol in their system when driving. That is, if the chemical test reveals a BAC of even 0.01 percent, a young driver is in violation of the zero tolerance law.
The under-21 driver is not subject to the same penalties as an adult driver if convicted under the zero tolerance law. Rather, they will lose their driving privileges for a period of 30 days before trial, then for one year after conviction.
Young drivers can also lose their license for a year if they do any of these acts:
- Buying alcohol or trying to buy it.
- Assisting another person to purchase alcohol.
- Using a fake ID, like a fraudulent driver's license or other falsified document, to buy alcohol.
- "Borrowing" someone else's driver's license or ID to buy alcohol.
Additional potential penalties include an order to pay fines and/or court costs, and being assigned a certain amount of community service hours. Note that a young driver whose BAC is 0.08 percent or higher can be charged with a regular DWI rather than a violation of the zero tolerance law.
Levels of DWI in North Carolina
Anyone convicted of driving while impaired in North Carolina is subject to both administrative penalties and criminal penalties. But not every driver gets the same level of sanctions. Punishment depends on a driver's misdemeanor level, which ranges from 5 to 1, with level five the least severe, and level one the most severe. The level is determined by a judge at a post-conviction sentencing hearing after hearing evidence of aggravating and mitigating factors.
Aggravating factors include: an elevated BAC of 0.15 percent or above; causing an accident; eluding police; driving 30 mph or more over the speed limit; passing a stopped school bus; and reckless driving. Even more serious circumstances are termed "gross aggravating factors." These include driving with a minor passenger while DWI; having prior DWI convictions in the past seven years; and causing another individual serious injury as a result of the DWI.
Mitigating factors include: a low BAC of 0.09 percent or less; for a per se drug DWI, the fact that the impairing drug was prescribed to the driver by a doctor; or they were driving relatively safely. For additional mitigating factors, a driver can also submit to a mental health screening, prove 60 days of monitored sobriety, or substance abuse treatment before sentencing.
DWI Penalties for Adult Drivers
Adult drivers convicted of a DWI in North Carolina will face imprisonment, fines, loss of license and substance abuse assessment and treatment. The amount of jail time ranges from 24 hours for a level five misdemeanor to 12 to 36 months in jail for a level one misdemeanor if the driver has three or more gross aggravating factors. Generally, the jail time for level four or five misdemeanors can be avoided by completing community service.
Fines also increase with the severity of the offense. A simple level 5 misdemeanor carries a fine of $200, while an aggravated level 1 misdemeanor can be assessed up to $10,000. A level 1 with two or fewer gross aggravating factors can be assessed a fine of $4,000.
Every driver convicted of a DWI in North Carolina must obtain a substance abuse assessment and complete the recommended treatment or rehabilitative course. DWI offenders found guilty of level one or level two misdemeanors must submit to alcohol and drug monitoring during probation, as well.
Ignition Interlock Devices
The North Carolina Division of Motor Vehicles will revoke the driver’s license of anyone convicted of a DWI. After the revocation period has run, the individual can get their license reinstated only if they install an ignition interlock device (IID) in every vehicle they own or regularly drive.
An IID is a type of breathalyzer that attaches to a vehicle's ignition system. It prevents the vehicle from starting unless and until the driver blows into the device and the IID determines that there is no alcohol on their breath. The period of time that a driver must use an IID depends on the number of prior DWI offenses in the last seven years. If the DWI is a first-time offense, the IID period is one year; for a second offense in seven years, the IID period is three years; and for a third offense, the driver must maintain the IID for a period of seven years.
The driver must go to a state-approved IID provider. They must pay an installation fee for each IID, plus an amount of money every month for each IID for the company to monitor the device. This adds up to a significant amount of money over time.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.